A 3-judge panel at the 11th Circuit Court of Appeals has declared the individual health insurance ownership mandate in the Patient Protection and Affordable Care Act (PPACA) to be unconstitutional.

The panel voted 2-1 to strike down the individual mandate section of PPACA, but it said that the provision could be considered separately from the rest of the act, and that invalidating the individual mandate would not make the entire act invalid.

The members of the panel – Chief Judge Joel Dubina, Judge Frank Hull and Judge scales of justiceStanley Marcus – were ruling on an appeal of State of Florida et al. vs. United States Department of Health and Human Services et al., (Case Number 3:2010-cv-00091-RV-EMT).

THE MINiMUM ESSENTIAL COVERAGE PROVISION

If PPACA takes effect on schedule and works as expected, the minimum essential coverage provision would require most individuals to have health coverage or buy it starting in 2014.

The provision require most people with incomes above a certain level who do not get health coverage from their employers to buy a minimum level of health coverage or else pay a penalty. The provision provides exceptions for individuals with religious objections to owning health coverage and individuals who cannot find affordable health coverage.

Health insurers have argued that they can provide affordable health coverage for all, without basing rates on health status, only if the government requires all people – including relatively young, healthy people – to have health coverage.

THE VINSON RULING

U.S. District Judge Roger Vinson, a federal judge in Pensacola, Fla., ruled on the Florida case in January that the individual mandate provision is unconstitutional and that all of PPACA is unconstitutional.

Vinson said the Constitution gives Congress no more authority to make citizens buy health insurance than it does to make them buy broccoli, and that, if the individual mandate is struck down, the entire act must be struck down, because PPACA has no “severability clause,” or provision that calls for preserving the act as a whole if one component is found to be unconstitutional.

THE NEW RULING

The 11th Circuit has agreed with Vinson’s argument about the individual mandate.

“We recognize the argument that, if states can issue economic mandates, Congress should be able to do so as well,” Dubina writes in an opinion for the majority “Yes, some states have exercised their general police power to require their citizens to buy certain products–most pertinently, for our purposes, health insurance itself. But if anything, this gives us greater constitutional concern, not less. Indeed, if the federal government possesses the asserted power to compel individuals to purchase insurance from a private company forever, it may impose such a mandate on individuals in states that have elected not to employ their police power in this manner.”

Congress has hamstrung the mandate, anyway, by including a weak enforcement mechanism, Dubina says.

In most cases, the Supreme Court has decided to sever a constitutionally defective provision from the rest of a statute, Dubina says.

“The Supreme Court’s test for severability is ‘well-established,’” Dubina says. “‘Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.’”

Assuming an act is severable is rooted in notions of judicial restraint and respect for the separation of powers, Dubina says.

PPACA’s “other provisions remain legally operative after the mandate’s excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met,” Dubina says.

THE DISSENT

Marcus, the judge who ruled in favor of the constitutionality of the PPACA health insurance ownership mandate, says the provision is necessary for preventing the cost-shifting that occurs when uninsured people use health care services.

Congress already has used an expansive interpretation of the Commerce Clause, without facing successful challenges regarding constitutionality, to impose the laws and regulations it already imposes on the commercial health insurance market, Marcus says.

Letting Congress require the purchase of health insurance would not give Congress the ability to require the purchase of General Motors cars, or of broccoli, Marcus says.

“Neither those markets nor their hypothetical mandates resemble the market and mandate here,” Marcus says. “In the first place, unlike the needs for food, transportation, and shelter — which are always present and have largely predictable costs — illness and injury are wholly unpredictable. Individuals who never intend to consume health care, unlike those who never intend to purchase GM cars or broccoli or a home, will nonetheless do so because of accidents, illnesses, and all the vagaries to which one’s health is subject.”

In addition, most people can handle the costs of food, transportation and shelter themselves, but they must turn to other resources for help with paying for care for serious medical conditions, Marcus says.

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